A woman (“Complainant”) was raped by a man whom she allegedly knew, but not by name. She reported the rape and the assailant (“Accused”) was charged. The Accused was not medically examined, and there was no medical evidence to connect him to the alleged offense. Nor was there any other independent evidence connecting the Accused to the crime, although there was ample evidence that the Complainant was raped. The Trial Court believed the Complainant and convicted the Accused. When the Accused appealed, the High Court confirmed his conviction. The Accused then sought review at the Court of Appeal, arguing that his conviction was based on uncorroborated evidence.
The Court examined whether someone can be convicted of rape without independent corroborated evidence.
The Court of Appeal considered the provisions of the Kenyan Constitution that stipulate the right to non-discrimination, and concluded that the requirement for independent corroboration in sexual offenses against adult women and girls is unconstitutional. The Court went on to say that “[w]e think that the time has now come to correct what we believe is a position which the courts have hitherto taken without a proper basis, if any basis existed for treating female witnesses differently in sexual cases, such basis cannot properly be justified presently. The framers of the Constitution and Parliament have not seen the need to make provision to deal with the issue of corroboration in sexual offences. In the result, we have no hesitation in holding that the decisions which hold that corroboration is essential in sexual offences before a conviction are no longer good law as they conflict with Section 82 of the Constitution.”
The Court concluded that the requirement that a conviction of rape must be based on independent corroborated evidence is unconstitutional.